What should we do, according to international law, if we believe a country is harboring terrorists?

RATHER THAN BOMB, THE US SHOULD NEGOTIATE, EXTRADITE & PROSECUTE

I. The US is a member of the United Nations, and bound by its Charter.

The UN Charter calls for settling "international disputes by peaceful means" and asks that countries "refrain from force." It recommends negotiation, mediation, binding arbitration, and if that fails, then the International Court of Justice can settle the dispute, as can the Security Council. Nations can also use "other peaceful means of their own choice."

The UN Security Council Resolution1368 of 9/12/01 reiterated that the US should use peaceful means. It called on:

• all states to work together to bring to justice the perpetrators, organizers & sponsors.
• use cooperation, implement conventions, & Security Council resolutions.
• it declared that any act of international terrorism was a threat to peace & security. This clears the way for a declaration of war by the UN; however the UN DID NOT declare war.

II. Treaties on Terrorism call for prosecution or extradition of suspects.

Afghanistan & the US are parties to 2 of 5 relevant treaties on terrorism: the Convention on Offences on Aircrafts and the Convention for the Suppression of Unlawful Seizure of Aircraft.

The Taliban government of Afghanistan did offer to try bin Laden if the US would show the evidence it had against him. The US refused to pursue this possibility; if it feared a sham trial, it should have negotiated through the UN for extradition.

An example where terrorist suspects were successfully extradited occurred after the Kenya & Tanzania embassy bombings (200+ dead; 4000 injured) in 1998. Suspects were extradited from Kenya, Tanzania, South Africa & England -- tried in the US with due process of law, including presumption of innocence & no collective punishment. They were sentenced to life in October 2001.

The Taliban offered to extradite suspects to a third party; the US refused even though there are many precedents for this. For example, Libya refused to extradite its citizens to Scotland after the Pan Am Lockerbie bombing, fearing an unfair trial in Scotland. All parties agreed that the suspects would be tried in the Netherlands under Scottish law and judges. Libya extradited and in 2001 one suspect was convicted and one acquitted.

It is common to negotiate before handing over suspects for trial. Canada negotiates that no death penalty will be used before it extradites suspects to the US.

III. When a country does not extradite or prosecute, it is harboring terrorists and is violating its treaty obligations. Such violations should be subject to further negotiations and censure by the UN; there is no justifiable precedent for bombing.

Spain wanted to extradite Pinochet from England for terrorism & crimes against humanity involving Spanish citizens (1000s killed, 10,000s disappeared in Chile & Argentina during the 70s & 80s). Although England refused, Spain did not bomb England. You cannot always bring the criminal to justice quickly.

France tried an Argentinean in absentia for killing two nuns. Argentina refused to extradite, so France issued an international arrest warrant. The criminal is now known and his freedom of travel is restricted. France did not bomb Argentina.

Do we want to be bombed for harboring terrorists? The School of the Americas trains terrorists for actions in Central & South America.

IV. The US is using terrorism as a pretext for violent policies against regimes it dislikes.

Since the US and Israel have a good relationship based on funding and arms sales & testing, the US doesn't bomb Israel for harboring a war criminal (current Prime Minister Ariel Sharon is responsible for allowing the killing of 1000s in the Palestinian refugee camps of Sabra & Shatila in Lebanon, 1981, & has been charged with war crimes in a Belgium court) . But the US has bombed many other countries, including Afghanistan, Sudan, & Libya, allegedly for harboring terrorists.

CONCLUSION: The Taliban is not in breach of its duty to extradite or prosecute because its offers to do so have not been explored; in bombing Afghanistan, the US is violating its duty to pursue peaceful negotiations and pursue the Taliban's offers to try or extradite suspects.

Prepared in October 2001 by Linda Bevis, former human rights attorney in Palestine. Use freely if helpful. Questions or comments? lindabevis@yahoo.com